2019 P Cr. L J 161
[Balochistan]
Before Jamal Khan Mandokhail and Zaheer -ud-Din Kakar, JJ
ABDUL REHMAN--- Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 66 and Murder Reference No. 1 of 2016, decided on 31st July, 2018.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b)& 34---Qatl -i-amd, common intention---Appreciation of evidence ---Delay of
about five hours in lodging the FIR ---Effect ---Incident took place on 30.11.2014 at about
12.30 p.m., but the matter was reported to the police for registra tion of FIR at 5.00 p.m.
with unexplained delay of about five hours ---Facts remained that after the occurrence, the
injured was shifted to the hospital and the complainant along with his relatives were busy
in saving the life of injured, which was prime consideration ---Said facts definitely took
considerable time and police station was five kilometers away from the place of occurrence--- Such delay was not fatal to the case of prosecution.
(b) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 34---Qatl -i-amd, c ommon intention ---Appreciation of evidence ---Ocular
account supported by medical evidence ---Prosecution case was that the accused and co -
accused persons, armed with knives, went to the house of brother of the complainant and caused him grievous injuries ---Ocular account of the incident was furnished by four
witnesses including complainant ---Complainant was not eyewitness of the incident, and he,
after receiving telephonic information regarding the incident, reported the matter to the police ---Two prosecution witnesses reached the place of incident, shifted the injured to
hospital and identified the accused but did not assign any role of causing knife injuries to
the deceased ---Son of deceased/witness had given a detailed account of the incident by
attributin g the entire responsibility to the accused in respect of giving knife injuries
resulting in unnatural death of his father on the day of occurrence ---Said witness remained
consistent and firm regarding his stance about the role of the accused in perpetrating the
alleged offence--- During cross -examination, said witness remained stuck to his stance and
despite lengthy cross -examination, defence could not shake his confidence and nothing
beneficial to the accused could be surfaced ---Said witness was independent , natural and
trustworthy and there was no lawful justifiable cause to discard his statement ---Son of
deceased could have no motive to falsely implicate the accused--- Circumstances suggested
that it could not be expected from a son that he would let the re al culprit go scot -free by
implicating and giving the role of causing fatal knife injuries to innocent person--- Record
showed that medical evidence fully supported the ocular account furnished by the son of deceased/witness with regard to death of the deceased as a result of sharp weapon injuries -
--Allegation against the accused being that of causing knife injuries to the deceased, therefore, it was quite safe to say that ocular account was fully supported with the medical evidence--- Circumstances establish ed that prosecution had proved its case against the
accused, who effectively gave knife blows to the deceased causing him fatal injuries, resulting into his unnatural death--- Appeal against conviction was dismissed in
circumstances.
Ijaz Ahmed v. The St ate 2009 SCMR 99 rel.
(c) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 34--- Qatl-i-amd, common intention---Appreciation of evidence ---Non -
recovery of crime weapon from the possession of accused ---Scope ---Mere non -recovery of
crime weapon from possession of the accused was not enough to disbelieve the direct
evidence--- Recovery of crime weapon, related to human body and could only be served as
a piece of supporting evidence, if the case was otherwise proved by other evidence independently.
Muhammad Nadeem alias Deemi v. The State 2011 SCMR 872 rel.
(d) Criminal trial---
----Witness ---Chance witness ---Evidence of ---Scope ---If a witness had reasonably
explained his presence at the spot, he could not be said to be a chance witness.
Anwar Shamim v. The State 2010 SCMR 1791 rel.
(e) Criminal trial---
----Witness --- Related witness --- Statement of related witness ---Reliance ---Scope ---Mere
relationship between the witnesses and the deceased was not enough to discard their
evidence.
Zulfiqar Ahmed and ano ther v. State 2011 SCMR 492 rel.
(f) Criminal trial ---
----Evidence ---Solitary statement of eyewitness ---Scope ---Conviction could be based upon
the evidence furnished by a solitary witness, if it was of unimpeachable character and confidence inspiring.
Gulistan v. The State 1995 SCMR 1789; Muhammad Mansha v. The State 2001
SCMR 199 and Niaz -ud-Din and another v. The State and another 2011 SCMR 725 rel.
(g) Penal Code (XLV of 1860) ---
----S. 302(b) --- Qatl-i-amd, common intention--- Appreciation of evidenc e---Motive ---
Scope ---If the prosecution had succeeded in establishing the offence then presence of
motive or no motive would not be a ground for awarding lesser punishment to the accused---Lack of motive or weakness thereof was immaterial to withhold the n ormal penalty of
death in murder case when trustworthy evidence had squarely brought home the guilt against the accused beyond any doubt.
Muhammad Amin v. Muhammad Khan and others 2002 SCMR 1473; Muhammad
Akbar and others v. The State PLD 2004 SC 44 and Muhammad Amin alias Irfan v. The
State 2004 SCMR 1676 rel.
Muhammad Ayub Tareen for Appellant.
Nasibullah Kasi for the Complainant.
Ameer Hamza Mengal, Deputy Prosecutor -General for the State.
Date of hearing: 12th June, 2018.
JUDGMENT
ZAHEER -UD-DIN KAKAR, J. ---This common judgment will dispose of Murder
Reference No.1 of 2016 forwarded by the Additional Sessions Judge, Muslim Bagh ("the trial court") as well as Criminal Appeal No.66 of 2016 filed by the appellant Abdul Rehman son of Sikandar against the judgment dated 27.02.2016 ("the impugned judgment"), passed by the trial Court, whereby he has been convicted and sentenced as under:
Under section 302(b), P.P.C.
"Sentenced to death as Tazir with fine of Rs.100,000/ - under section 544- A, Cr.P.C.
to the legal heirs of deceased Rozi Khan. In case of default, he has to further suffer SI for six (6) months."
2. Precisely stated facts of the case are that on 30.11.2014 at about 8:00 a.m., accused
persons Abdul Rehman, Amir Zaman and Ramzan, armed with knives, went to the house of Rozi Khan (brother of complainant Matiullah) and caused him grievous injuries. Resultantly, FIR No.20 of 2014, dated 30.11.2014, under sections 324, 34, P.P.C. was registered at Police Station Muslim Bagh. It is necessary to mention here that the injured succumbed to his injuries on 02.12.2014, therefore, section 302, P.P.C. was inserted in the FIR.
3. After formal investigation, report under section 173, Cr.P.C. was submitted before
the trial Court and the accused/appellant was sent to face the trial. The trial Court seized
with the matter, framed charge on 14.4.2015 against the accused/appellant, to which he pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined following witnesses :
PW-1 Matiullah is complainant of the case, reiterated the contents of his application
(Ex-P/1-A) and further stated that in his application (Ex -P/1-A) he inadvertently
mentioned the time of occurrence as 8:00 a.m. instead of 12:30 p.m.
PW-2 Hayat Khan and PW -4 Noor Ali confirmed the presence of the appellant at
the spot but they did not assign any role of causing knife injuries to the deceased, towards him.
PW-3 Hayatullah is eye -witness of the incident.
PW-5 Ghulam Muhammad produced the blood st ained earth through the recovery
memo Ex -P/5-A.
PW-6 Dr. Jaffar, Medical Officer, Sandeman (Prov.) Hospital, Quetta stated that on
30.11.2014 he was performing his duties at Civil Hospital Quetta. At about 5:20 pm an injured namely Rozi Khan son of Abdul Aziz, referred by Medical Officer Killa
Saifullah brought to causality. He examined the injured/deceased and found the following injuries on his body:
i. Two stitched wound left anterior chest.
ii. Two stitched wound left chest.
iii. Three stitched wound l eft lumbar region.
On 3rd day of admission, the injured expired due to shock.
According to PW -6 cause of death is injury to vital cavity chest due to sharp weapon
haemorrhage, Pneumo thorax and death.
He produced Medico Legal Certificate as Ex .P/6 -A.
PW-7 Muhammad Saleem Naib Tehsildar/Investigating Officer, conducted
investigation, recorded statements of witnesses and produced site plan as Ex -P/7-B,
inquest report as Ex -P/7-C, supplementary statement of complainant as Ex -P/7-D,
recovery memo of blood stained clothes as Ex -P/7-E, disclosure memo of the
appellant as Ex -P/7-F. incomplete challan as Ex -P/7-G and challan dated 13.2.2015
as Ex -P/7-H. Prepared challan Ex -P/7-J and FSL report Ex -P/7-K and lastly
submitted complete challan as Ex -P/7-L. The co -accused persons namely Amir
Zaman and Ramzan were discharged under section 169, Cr.P.C. by the Investigating Officer due to lack of evidence against them.
4. After completion of the prosecution side, the accused was examined under sections
342 and 340(2), Cr.P.C., wherein he denied the prosecution case and stated that he is innocent and did not commit any murder. In his statement under section 340(2), Cr.P.C., he stated that on the day of occurrence he was in Punjab; after forty (40) days when he came to Killa Saifullah, someone told him that he was called in Thana, when he went there, the police detained him. He did not commit murder nor he knows about the said murder. According to the appellant, he has falsely been implicated in the murder case.
5. After conclusion of trial and hearing both sides, the trial Court convicted and
sentenced the appellant, hence this appeal.
6. Learned counsel for the appellant has contended that:
i. That the FIR was registered after unexplained delay of five hours;
ii. That there is no eye- witness of the alleged incident and the prosecution has produced
false and fabricated eye- witness(s);
iv.(sic.) That the prosecution has failed to prove its case against the appellant beyond
shadow of doubt and the trial Court erred in law and facts by convicting the
appellant;
v. That nothing was recovered from possession of the appellant;
vi. That the alleged eye- witness i.e. PW -3 is son of the deceased and besides he is the
chance witness and the incident was never witnessed by him;
vii. That the judgment of the trial Court dated 27.2.2016 is against the law and facts hence, is liable to be set aside:
viii. Lastly submitted for the acceptance of the appeal of the appellant.
7. On the other hand, the learned DPG assisted by learned counsel for the complainant
has vehemently opposed the appeal and submitted that:
i. The prosecution has proved its case beyond any shadow of doubt against the
appellant with solid evidence and prayed for the dismissal of the present appeal.
8. We have carefu lly examined the respective contentions as agitated on behalf of the
appellant and for the State, scrutinized the entire prosecution evidence by keeping the defence version in juxtaposition and perused the judgment of the trial Court. As far as, first contention of learned counsel for the appellant that the alleged incident took place on
30.11.2014 at about 12:30 p.m. but the complainant reported the matter to Levies Thana, Muslim Bagh for registration of FIR on 30.11.2014 at 5:00 p.m. with an unexplained delay of about five hours, is concerned, the same has been described that although there is a delay of about five hours in reporting the crime to the levies, yet the fact remains that after the occurrence the injured was shifted to the hospital at Killa Sai fullah, from where he was
shifted to Quetta and the complainant along with his relatives were busy in saving the life of injured, is always considered prime consideration, this definitely took considerable time. Moreso, keeping in view the distance of 5 Ki lometer between the place of occurrence and
the Levies Thana, such delay is not so fatal to the case of the prosecution.
9. Now reverting to merit of the case, the prosecution to substantiate the allegation
produced seven witnesses. In the instant case PW-1 Attaullah (complainant) is not an eye -
witness of the incident, rather he after receiving telephonic information regarding the incident, reported the matter to the Levies. As far as PW -2 Hayat Khan and PW -4 Noor Ali
are concerned though they reached at the place of incident, shifted the injured to hospital
and identified the appellant but did not assign any role of causing knife injuries to the deceased towards him. The prosecution case hinges upon the solitary statement of PW -3
Hayatullah son of the de ceased Rozi Khan, who has deposed in a simple and
straightforward manner as follows:
(Underlining is provided by us for emphasis)
10. A careful analysis of above deposition of PW -3 reveals that he had given a detailed
account of the incident by attribut ing the entire responsibility to the appellant in respect of
giving knife injuries resulting in unnatural death of his father on the day of occurrence. He remained consistent and firm regarding his stance qua the role of the appellant in perpetrating the a lleged offence. During cross -examination, he remained stuck to his stance
and despite the lengthy cross -examination, defence could not shake his confidence and
nothing beneficial to the appellant could be surfaced. In our considered opinion, he is an
independent, natural and trustworthy witness and there is no lawful justifiable cause to
discard his statement. Further, we have observed with concern that though PW Hayatullah is son of the deceased, yet he was having no motive to falsely implicate the appella nt. In
the circumstances of this case, he is a more important and reliable witness than any other could be. It normally cannot be expected from a son/brother that he would let the real culprit go scot -free by implicating and giving the role of causing fata l knife injuries to an innocent
person. In this regard, reference is made to the case titled as Ijaz Ahmed v. The State (2009 SCMR 99), wherein the Hon'ble Supreme Court was pleased to observe as under:
"In the wake therefore, it proceeds that merely because the witnesses are kith and kin, their evidence cannot be rejected if otherwise it is trustworthy. It would also be pertinent to mention here that related witnesses some time, particularly in murder cases, may be found more reliable, because they, on ac count of their relationship
with the deceased, would not let go the real culprit or substitute an innocent person for him."
11. It is further matter of record that medical evidence fully supports the ocular account
furnished by PW -3 with regard to death of the deceased as a result of Sharp weapon injuries
and since the allegation against the appellant is also that of causing knife injuries to the
deceased, therefore, it is quite safe to say that ocular account was fully supported with the medical evidence. Further, despite cross -examination to Medical Officer by the defence
counsel could not create any doubt, which could have favour him or least could have led to an inference that the medical evidence is not in corroborating to the ocular account, so furnish ed by the PW -3.
12. So far the recovery of crime weapon i.e. knife which has not been effected from the
appellant. It is not enough to say that mere non- recovery from possession of the appellant
is sufficient to disbelieve the direct evidence, because the recovery of crime weapon in a criminal case, related to human body, can only be served as a piece of supporting evidence, if case is otherwise proved by other evidence independently. In this regard, reference can be made to the case of Muhammad Nadeem alias Deemi v. The State {2011 SCMR 872}.
13. Reverting to the next contention of the learned counsel for the appellant that the
PW-3 was a chance witness, therefore, his statement is not reliable. We do not agree with
the contention of the learned counsel for the appellant that the PW -3 is chance witness and
his statement is not reliable for the reason that he has deposed in a simple and straightforward manner. It has been held by the Hon'ble apex Court time and again that even if a chance witness reasonably explains his presence at the spot, he cannot be said to be a chance witness. In this regard, we are fortified by the dictum laid down by the Hon'ble apex Court in case of Anwar Shamim v. The State reported in {2010 SCMR 1791}, wherein it has been held that:
"PW -1 Muhammad Ilyas and PW -2 Liaquat Ali in the circumstances of the case in
hand could not be termed as chance witnesses in view of relationship between the deceased and the witnesses as they have furnished sufficient explanation to be present at the s pot at the time of commission of offence by the appellant ......Both
the eyewitnesses would be natural witnesses and cannot be termed as chance witnesses, therefore, their evidence would deserve full credence being genuine and legitimate particularly when there was no material discrepancy or contradiction of a potential nature in their evidence. Even if a chance witness reasonably explains his presence at the spot and his narration of occurrence inspires confidence then he is not a chance witness and his te stimony can be considered along with other
evidence." (Underlining provided by us for emphasis)
14. So far as, the relation of PW -3 with the deceased is concerned, this is also no ground
to discard his statement merely on account of his relationship with the deceased, particularly when there is no motive of false implication of the accused in the offence. It is a settled principle of law that mere relationship between the witnesses and the deceased is not enough to discard their evidence. In this regard, reference can be made to the case of
Zulfiqar Ahmed and another v. State {2011 SCMR 492}, wherein it is held as:
".......It is well settled by now that merely on the ground of inter -se relationship the
statement of a witness cannot be brushed aside. The concept of 'interested witness'
was discussed elaborately in case titles Iqbal alias Bala v. The State (1994 SCMR
1) and it was held that friendship or relationship with the deceased will not be sufficient to discredit a witness particularl y when there is no motive falsely involve
the accused."
15. As mentioned in para supra, the prosecution case rests upon the solitary statement
of PW -3, it is an established principle of law that the conviction can be based upon the
evidence furnished by a solitary witness if it is of unimpeachable character and confidence inspiring. With regard to basing the conviction of the appellant on the solitary statement of PW-3, we are supported by the dictum laid down in the case of Gulistan v, The State {1995
SCMR 1789}, the relevant portion whereof is reproduced hereinbelow:
"The conviction of the appellants rested on the solitary statement of Muzaffar Khan P.W.4. No doubt, in a criminal case the conviction of an accused can be based on the statement on witness w ithout corroboration but the condition is that the witness
should be absolutely dependable."
Similar view was held in the case of Muhammad Mansha v. The State {2001 SCMR 199}, relevant portion thereof is also reproduced below:
"The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or
rejected. If such a testimony is found by the Court to be entirely reliable, there is no
legal impediment to the conviction of the accused person on such proof."
Similar view was also expressed in the case of Niaz -ud-Din and another v. The State and
another {2011 SCMR 725} in the following words:
"Even in a murder case conviction can be based on the testimony of a single witness,
if the Court is satisfied that he is reliable. "The reason being that it is the quality of evidence and not the quantity which matters."
16. We have also examined with care and caution the defence version, which is nothi ng
but denial simplicitor on account of false involvement, but no evidence could lead to show us that the appellant was in Punjab province at the time of incident and after forty (40) days of the occurrence he came to Killa Saifullah, where he was arrested and implicated in the
instant case. It is cardinal principle of law that in such like cases of two versions, on is to be believed in toto and not in piecemeal. This proposition of law is settled by now as reflected in the case of Safdar Ali v. Crown (PLD 1953 FC 93) wherein it has been held that in a criminal case it is duty of the Court to review the entire evidence that has been produced by the prosecution and the defence. While following this principle of law, we have examined the versions of both the parties. The version put forth by the prosecution seems to be trustworthy, based on unimpeachable and tangible evidence.
17. Being satisfied with regard to the reliability of the corroborated confidence inspiring
statement of PW -3, having no reason for fals e implication of the appellant, we are only left
to determine the quantum of sentence of death awarded to the appellant in absence of any motive and to determine as to whether the absence/lack of motive can be treated as a
mitigating circumstances for awar ding lesser sentence. In this regard the settled principle
is that, if the prosecution had succeeded in establishing the offence, then presence of motive or no motive would not be ground for awarding lesser punishment to the accused. Further
this principle can only be invoked when the prosecution has not alleged the motive behind
the occurrence and in the instant case throughout the trial the prosecution has not alleged
any motive. In this regard, we are fortified by the dictum laid down in the case of Muha mmad Amin v. Muhammad Khan and others {2002 SCMR 1473}, wherein it was
held as under:
"Now turning towards the argument of learned counsel for the petitioner that if the prosecution has succeeded in establishing offence the presence of motive or no motive would not be ground for awarding lesser punishment to the accused. As far
as the legal proposition is concerned there is no cavil with it but this principle would only be invoked when the prosecution has not alleged the motive but if the motive is alleged then it becomes its duty to prove the same but if the prosecution failed to
prove the motive so- alleged and it has also not proved through convincing evidence
that the accused has committed the crime charge against him then on considering non- establishing of motive to be a mitigating circumstance sentence can be awarded
to the accused charged for the murder having regard to the facts and circumstances of the case."
Similarly, in the cases of Muhammad Akbar and others v. The State {PLD 2004 SC 44} and Muham mad Amin alias Irfan v. The State {2004 SCMR 1676} it was held that, lack of
motive or weakness thereof is immaterial to withhold the normal penalty of death in murder cases when trustworthy evidence had squarely brought home the guilt against the accused beyond any doubt.
18. Hence, we conclude that ocular evidence furnished by PW -3 and corroborated by
medical evidence is trustworthy and reliable and the prosecution has abundantly proved its case against the appellant Abdul Rehman son of Sikandar, who effectively gave knife blows to the deceased causing him fatal injuries resulting into his unnatural death and there are no extenuating circumstances to award lesser punishment to the appellant. Since the guilt of the appellant for causing murder stands pr oved beyond reasonable doubt, the trial Court
has rightly imposed penalty of death to the appellant.
19. In the light of what has been discussed above, the Criminal Appeal No. 66 of 2016
filed by the appellant is dismissed, resultantly, the Murder Referenc e No. 01 of 2016 is
answered in affirmative.
JK/66/Bal. Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.